By Art Harding
Now that the FCC has settled on an initial clearing target of 126 megahertz for the TV incentive auction, station owners face a number of decisions. Even if you’ve decided not to “pack it in” and participate in the auction, the time is ripe to start planning for the “repacking” process that will occur after the auction is completed. Garvey Schubert Barer attorney Art Harding addresses questions that may be on your radar as the complicated incentive auction process unfolds in this first part of a three-part series. {lock}
Will I get repacked?
If the initial clearing target of 126 megahertz is met, every television station currently operating on UHF channel 30 or higher will be repacked if it has elected not to sell its spectrum in the auction. UHF stations operating on channel 29 or below could be repacked if necessary to accommodate stations moved from higher frequencies. VHF stations electing not to sell their spectrum generally will not be repacked, unless they have agreed to move from a high VHF to a low VHF frequency. But the 126 megahertz clearing target is not good news for TV translators and non-class A LPTV stations – the repacking process will likely force a significant number of such stations to cease operations.
Of course, the “clearing target” is not set in stone – it could be adjusted downward, for example, if stations drop out of the reverse auction process or if the forward auction bidding is insufficient, thereby requiring a subsequent round with a lower clearing target. Nevertheless, broadcasters who expect to remain on the air post-auction, either because they have elected not to participate, or because they have chosen to drop out or their bid has been rejected by the FCC, may want to start planning for eventual repacking now.
How long will I have?
The FCC has established a deadline of 39 months for stations ordered to change frequencies in the repacking process. This means that there could be much to do in a short period of time, such as:
- Determine if the existing tower site will work for the new frequency;
- If not, locate a suitable location, preferably on an existing stick;
- Replace or modify the antenna;
- Obtain zoning or other local permits;
- Secure license modification from the FCC;
- Coordinate with consulting engineers, legal counsel, and construction crews as required;
- Develop a marketing plan for operation on the new channel assignment, including coordination with cable and DBS providers distributing your station; and
- Satisfy FCC requirements for notifications to viewers and MVPDs.
Significantly, this 39-month period (three months to complete and file any necessary construction permit applications and thirty-six months to construct modified facilities) is a maximum – the Media Bureau has discretion to adopt shorter construction periods that might vary by region or the complexity of construction tasks. Moreover, all TV stations (except those with no channel changes due to repacking) must cease operations on their pre-auction channels at the end of the 39-month period, even if they have not completed construction of their new facilities. The FCC’s 39-month post-auction “go-dark” deadline was upheld by the DC Circuit Court of Appeals.
Recognizing that 36 months may be insufficient to complete station modifications necessitated by repacking in all circumstances, stations may request a single extension of up to six months of their original construction deadline. Factors that the FCC might consider to justify an extension request include weather-related delays, unavailability of equipment or tower crews, tower lease disputes, unusual technical challenges, or delays due to governmental approval requirements, such as land use or zoning approvals. Even if a station’s construction deadline is extended, it must nevertheless cease operation on its pre-auction channel after 39 months, but may seek “special temporary authority” to operate on its new channel assignment, e.g., at reduced power, until its authorized construction is completed.
Net time, we’ll address who’s going to pay for spectrum and possible repack coverage issues.
Art Harding joined Garvey Schubert Barer in March as Of Counsel in the Communications, Media and Information Technology practice. He focuses on broadcasting, cable television and telecommunications. Harding began his legal career at the FCC and later moved to private practice with a communications boutique that became Fleischman and Harding and was later part of Locke Lorde. Harding has been elected to Washington, D.C. Super Lawyers and is rated AV Preeminent by Martindale Hubbell for 2016. Reach him at: [email protected]/
